STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN L. WINN, AS COMMISSIONER OF EDUCATION,

Petitioner,

vs.

DANIEL RAY MADRIL,

Respondent.

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) Case No. 07-3498PL

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RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case in Brooksville, Florida, on October 5, 2007.

APPEARANCES

For Petitioner: Edward T. Bauer, Esquire

Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

For Respondent: No Appearance

STATEMENT OF THE ISSUE

Whether Respondent's educator certificate should be disciplined for conduct in violation of Sections 1012.795 and 1012.796, Florida Statutes, and Florida Administrative Code Rule

6B-1.006 as alleged in the Administrative Complaint filed in this matter.

PRELIMINARY STATEMENT

On August 17, 2006, Petitioner, John L. Winn, Commissioner of Education, State of Florida, filed an Administrative Complaint alleging that Respondent, Daniel Ray Madril, had committed acts of misconduct on March 3, 2005, when Respondent situated himself in the ceiling over the female coaches' office, the women's' restroom, and the girls' locker room and showers and did secretly observe one teacher and two students. On March 18, 2005, Respondent was arrested for voyeurism related to the incident on March 3, 2005. Respondent later entered into pre-trial diversion as a result of these criminal charges. On May 17, 2006, the Hernando County School Board terminated his teaching contract.

On October 12, 2006, Petitioner received Respondent's request for a formal hearing as he disputed all allegations of the Administrative Complaint. The case was forwarded to the Division of Administrative Hearings by the Department of Education, Education Practices Commission, on July 30, 2007, requesting a formal hearing.

On the same day, July 30, 2007, an Initial Order was sent to both parties requesting that they advise as to dates of mutual availability. Based on the response of Petitioner

(Respondent did not respond), by Notice of Hearing dated August 14, 2007, the case was scheduled for final hearing on October 5, 2007, in Brooksville, Florida.

The case was presented as scheduled. Petitioner offered the testimony of four witnesses: Heather Edwards, Kristen Williams, Michelle Booker, and Barbara Kidder and one exhibit, which was admitted into evidence and marked Petitioner's Exhibit 1. Respondent did not appear, nor was he represented.

A Transcript of the hearing was filed with the Clerk of the Division of Administrative Hearings on October 15, 2007.

Petitioner timely submitted a Proposed Recommended Order that has been considered in the preparation of this Recommended Order.

All references are to Florida Statutes (2004), unless

otherwise noted.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made:

1. Respondent holds Florida Educator Certificate 720983, covering the areas of physical education and athletic coaching.

2. During all times material to the allegations of misconduct, Respondent was employed as a physical education teacher at D.S. Parrott Middle School in the Hernando County School District.

3. On March 3, 2005, Heather Edwards was serving as a substitute gym teacher at D.S. Parrott Middle School. At one point during the day, several female students were changing clothes in the locker room. To respect their privacy,

   Ms. Edwards walked out of the locker room and decided to retrieve a jump rope from an equipment closet immediately adjacent to the girls' changing area and bathroom.

4. Upon entering the equipment closet, Ms. Edwards heard a rustling noise above her. She looked up and observed the Respondent standing on one of the top shelves and hanging over the top of the wall in a manner consistent with trying to observe the adjacent female locker room and showers, restrooms, and coaches' office. According to Ms. Edwards, Respondent's feet were elevated approximately six feet from the floor.

5. Due to ongoing air conditioning work in the locker room area, all of the ceiling panels had been removed. As a result, Respondent was able to view the female locker room and showers, restrooms, and coaches' office from his vantage point at the top of the equipment closet.

6. Ms. Edwards immediately confronted Respondent and asked him what he was doing. Respondent initially appeared shocked, but ultimately stated that he planned to scare the female coaches by throwing an object over the wall. Ms. Edwards

   noticed, however, that there was nothing in either of Respondent's hands.

7. Ms. Edwards also testified that Respondent was stuttering while trying to explain his actions, which was unusual for him.

8. At the time Respondent was peering over the top of the wall, female students were changing in the locker room and in the coaches' office.

9. Ms. Edwards immediately reported the incident to Kristen Williams, one of the full-time physical education coaches employed at the school. Ms. Williams investigated the matter and personally confirmed that Respondent would have been able to observe the female restroom, locker room, and coaches' office from the top of the equipment closet.

10. Ms. Williams reported the matter to one of the assistant principals, Michelle Booker. In turn, Ms. Booker advised the principal, Mr. Gordon, who asked Ms. Booker to accompany him to the locker room to investigate the matter. Ms. Booker verified that due to the removal of the ceiling panels, Respondent had the opportunity to observe the entire female locker room area from his position in the equipment closet.

11. As a result on this incident, Respondent was suspended from his teaching duties pending an investigation by the school

    district. He was arrested and charged with three counts of voyeurism. Respondent was ultimately terminated by the Hernando

    County School Board.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto subject to Sections 120.569 and 1012.795 and Subsection 120.57(1), Florida Statutes (2007).

13. Subsection 1012.795(1), Florida Statutes, authorizes the Education Practices Commission to suspend, revoke, or otherwise penalize a teaching certificate, provided it can be shown that the holder of the certificate:

    (c) Has been guilty of gross immorality or an act involving moral turpitude.

    
    

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    (f) Upon investigation, has been found guilty of personal conduct which seriously reduces that person's effectiveness as an employee of the district school board.

    
    

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    (i) Has violated the Principles of Professional Conduct for the Education Profession prescribed by State Board of Education rules.

    
    

14. Because Respondent's teaching certificate is at risk, Petitioner bears the burden of proving the allegations in the

    Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

15. Florida Administrative Code Rule 6B-1.006 states, in pertinent part, as follows:

    1. The following disciplinary rule shall constitute the Principles of Professional Conduct for the Education Profession in Florida.

       
       

    2. Violation of any of these principles shall subject the individual to revocation or suspension of the individual educator's certificate, or the other penalties as provided by law.

       
       

    3. Obligation to the student requires that the individual:

       
       

       1. Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's mental and/or physical health and/or safety.

          
          

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          (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement.

          
          

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          (g) Shall not harass or discriminate against any student on the basis of race, color, religion, sex, age, national or ethnic origin, political beliefs, marital status, handicapping condition, sexual orientation, or social and family background and shall make reasonable effort to assure that each student is protected from harassment or discrimination.

16. Florida Administrative Code Rule 6B-1.006(4)(c) states, as follows:

    1. Obligation to the public requires that the individual:

       
       

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       1. Shall not use institutional privileges for personal gain or advantage.

          
          

17. Florida Administrative Code Rule 6B-1.006(5)(d) states, as follows:

    1. Obligation to the public requires that the individual:

    
    

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    1. Shall not engage in harassment or discriminatory conduct which unreasonably interferes with an individual's performance of professional or work responsibilities or with the orderly processes of education or which creates a hostile, intimidating, abusive, offensive, or oppressive environment; and, further, shall make reasonable effort to assure that each individual is protected from such harassment or discrimination.

    
    

18. Florida Administrative Code Rule 6B-4.009 provides the basis for charges upon which dismissal action by school districts against instructional personnel may be pursued. Instructive to the instant cases are the following:

    1. Immorality is defined as conduct that is inconsistent with the standards of public conscience and good morals. It is conduct sufficiently notorious to bring the individual concerned or the education profession into public disgrace or

       disrespect and impair the individual's service in the community.

       
       

    2. Misconduct in office is defined as a violation of the Code of Ethics of the Education Profession as adopted in Rule 6B-1.001, F.A.C., and the Principles of Professional Conduct for the Education Profession in Florida as adopted in Rule

    6B-1.006, F.A.C., which is so serious as to impair the individual's effectiveness in the school system.

    
    

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    (6) Moral turpitude is a crime that is evidenced by an act of baseness, vileness or depravity in the private and social duties, which, according to the accepted standards of the time a man owes to his or her fellow man or to society in general, and the doing of the act itself and not its prohibition by statute fixes the moral turpitude.

    
    

19. Moral turpitude has also been defined by the Supreme Court of Florida as follows:

    Moral turpitude involves the idea of inherent baseness or depravity in the private social relations or duties owned by man to man or by man to society. It has also been defined as anything done contrary to justice, honesty, principle, or good morals, though it often involves the question of intent as when unintentionally committed through error of judgment when wrong was not contemplated. [citations omitted]

    
    

    State ex rel. Tullidge v. Hollingsworth, 146 So. 660, 661 (Fla. 1933).

20. Petitioner has demonstrated by clear and convincing evidence that Respondent committed an act of gross immorality,

    as well as moral turpitude, by positioning himself in an equipment room providing a clear view of female teachers and students who were or could be undressing, showering, and using the restrooms, thereby engaging in voyeurism. Specifically, the evidence supports no other conclusion than Respondent climbed to the top of the equipment closet to take advantage of the temporary absence of ceiling panels in order to clandestinely observe female teachers and students undressing, showering, and using the restrooms.

21. Petitioner has also demonstrated by clear and convincing evidence that by engaging in voyeurism, Respondent failed to make reasonable efforts to protect students from conditions harmful to learning, the student's mental health, physical health, and/or safety. His acts were discriminatory and would be embarrassing to the women observed.

22. Petitioner has proven by clear and convincing evidence that Respondent misused his position as a physical education instructor to enter the locker room equipment closet and furtively observe female teachers and students dressing, showering, and using the restrooms.

23. Petitioner has failed to prove Counts 2 (Subsection 1012.795(1)(f), Florida Statutes: "personal conduct which . . . reduces . . . effectiveness. . . .") and 8 (Florida Administrative Code Rule 6B-1.006(5)(d): "engage in harassment

. . . which unreasonably interferes with an individual's performance . . . .") of the Administrative Complaint by clear

and convincing evidence.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Education Practices Commission enter a final order finding that:

1. Respondent, Daniel Ray Madril, did violate the provisions of Subsections 1012.795(1)(c) and (i), Florida Statutes, and Florida Administrative Code Rules 6B-1.006(3)(a), (e), and (g) and 6B-1.006(4)(c); and

2. Dismissing Counts 2 and 8 of the Administrative Complaint.

It is further

RECOMMENDED that the Education Practices Commission enter a final order permanently revoking Respondent's teaching certificate.

DONE AND ENTERED this 9th day of November, 2007, in Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 2007.

COPIES FURNISHED:

Kathleen M. Richards, Executive Director Education Practices Commission Department of Education

325 West Gaines Street, Room 224 Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education

Turlington Building, Suite 224-E

325 West Gaines Street Tallahassee, Florida 32399-0400

Daniel Ray Madril 5776 Scotland Court

Pensacola, Florida 32526

Edward T. Bauer, Esquire Brooks, LeBoeuf, Bennett, Foster

& Gwartney, P.A.

909 East Park Avenue Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 07-003498PL

Orders for Case No: 07-003498PL